Ku. Ruchi Trikha vs State of M.P.

T.S. Doabia, J.

Shrinking avenues, increasing population, suffer competition are stark realities. This has created a different-type of tension in the minds of the youth of today. Such are the ground realities that one may lose a job opportunity or admission to an educational institution by a fraction of grade. Is it not necessary for an examination authority to provide an atmosphere where the candidates are able to answer the question where the atmosphere is congenial and the tensions are not aggravated ? The present is a case where the respondents have disowned their responsibility in totality and have put the entire blame on the candidate alone. The facts out of which this petition arises may be noticed as under.

The petitioner is yet to attain majority. Her guardian has filed this petition. Pre-Medical Test for the year 1994 was conducted by the Professional Examination Board. This test was held on 4th July. 1994 at Madhav Institute of Technology and Sciences, Gwalior which is the cause of this petition. The procedure was to supply a question booklet to the candidates. The answers were to be given on a separate sheet. This is an objective type paper. The examination commenced at 8 A.M. The duration was 2 hours and 100 questions were to be answered. When the petitioner proceeded to attempt 41st question, she found that this question was not there instead the sequence of questions was in the following order:

71, 72, 73, 74, 75, 76, 77, 78, 79, 80 61, 62, 63, 64, 65, 66, 67, 68, 69, 70 61, 62, 63, 64, 65, 66, 67, 68, 69, 70 51, 52, 53, 54, 55, 5,6. 57, 58, 59, 60 41, 42, 43, 44, 45, 46, 47, 48, 49, 50 81, 82, 83,. 84, 85, 86, 87, 88, 89,90 91, 92, 93, 94, 95, 96, 97, 98, 99. 100

This break is sequence of the number, according to the petitioner broke the sequence of her thought process as well. She got nervous. She approached the Superintendent as also the invigilator. There is some dispute as to the point when this fact was brought to the notice of the above officials. The petitioner slates that this was done as soon as she reached question No. 41 and found that this was not in order. The respondents in the return state that this protest was lodged only at the end as the petitioner wanted more time to answer the questions. I would he best to rely upon the affidavit of one Abhay Mishra who was Invigilator in this examination. This is Annexure R/4. This is what was stated in para 2 : -

That, I state on oath that Kumari Ruchi Trikha, the petitioner, had never made any complaint to me for about an hour after beginning of the examination in respect of the defective question booklet. As far as I remember, she made the said complaint after an hour, hut upto that time, there was no spare question hook-let with me as the Examination Supdt. collected all spare question book-lets as per instructions.

As the respondent have chosen to place reliance on Annexure R/4, it is to be believed that the objection was taken by the petitioner somewhere after she reached question No. 41.

In this regard, it would be pertinent to mention that had she not, noticed the serial numbers and proceeded to answer the questions then the results would have been catastrophic for her. The answer to question No. 71 would have found place against question No. 41 and so on. This information would have been then fed into the computer then the whole result would have been different. It was his anxiety on the part of petitioner which led her to seek clarification from the officers present in the examination hall. She was unable to get any proper assistance. According to the petitioner, she lost good amount of time in this process and this was the reason why she asked for more time and as to why she was unable to attempt all the questions. According to her, if this situation had not been there, she would have attempted the entire paper and the result would have been different.

The stand taken by the respondents may now be seen.

According to them, it is the responsibility of the candidate to check whether the questions book-let is in proper form or not. The candidate according to the respondents is required to open the seal and see that there is no defect or misprint in the question booklet. In case, there is any such defect found then the candidate should immediately ask for a second question booklet. It is further stated that the candidate has to tally the number of pages and the number of questions in the booklet with the information printed above on this page. Faulty booklet due to missing or duplicate pages/questions or any other discrepancy should be brought to the notice immediately. This is how the matter has been dealt with. Para 2 of the return is relevant and the same may he noticed.

Similarly, the question-booklet contains instruction No. 3 regarding ''Verification of Question-booklet'' As per the said instruction (ii), the candidate has to tally the number of pages and the number of questions in the booklet with the information printed above on this page. Faulty booklet due to missing or duplicate pages/questions or any other discrepancy should be got replaced immediately before answering the questions. Thus, even according to the petitioner after attemption of 4(1) questions, she might have made complaint to the Invigilators, but that is belated because as per instructions to the Examination Supdt. of the Centre; any spare question-booklet will be deposited back with the Supdt. of the Examination Centre and will be sealed and, therefore, the Invigilator cannot replace any booklet, if not demanded immediately.

Thus, the respondents put she entire blame on the candidate. They have disowned all responsibility.

It has further been stated that the prayer made by the petitioner that there should be reassessment and this should be done on the basis of average marks obtained by her is being refuted by asserting that the petitioner had attempted 99 questions. This is what has been stated in para 3 of the return. This reads as under:-

That, even on the basis of the booklet supplied to the petitioner has attempted upto 99 questions and therefore, it cannot be said that she has lost any time or she has demanded any question booklet prior to the commencement of the examination. The copy of the instructions issued to the Supdt. of the Examination Centre is submitted herewith , and marked as Annexure R-III.

From the narration of the facts made above, it is amply clear: -

(i) that, the petitioner discovered the defect as per the version given by the petitioner when she was about to attempt question No. 41. This version tally with the affidavit of the Invigilator Abhay Mishra, copy whereof is Annexure R/4;

(ii) that, she made a request for proper supply of answer sheet. The officials refused her prayer, and

(iii) that, the petitioner wanted to know as to how questions ought to be answered because had she answered question No. 71 against question No. 41, the results would have been disastrous for her;

I have considered the matter in its entirety. The stand taken by the respondents in paras No. 1 and 2 of the return is not tenable. The Board cannot put the entire blame on the petitioner. They cannot shift the consequence of their negligence on a candidate who had not bargained for such a situation. In this age of competition, they just cannot forget what they have done. The petitioner has to be compensated. The question arises as to bow she can be compensated.

Ajit Kumar Baral v. Utkal University, AIR 1990 Ori 175, applied the principle of proportional quotient. In this case there was loss of answer papers. It was observed that "Since the highest marks obtained by a candidate in a particular paper is taken into account for determining the average performance or average marks of the candidate which marks could be awarded in the missing paper." The court accordingly directed "we would therefore direct the University to declare the petitioner''s result by awarding marks in the missing paper-7 in physics by calculating the average on the basis of highest marks the petitioner has obtained in rest of the papers".

Again, in Sunita Rani and Another Vs. Haryana School Education Board and Others, a direction was given to declare the proper result when the answer papers happened to be given wrong Roll Numbers and when for this error the Centre Superintendent was equally responsible. The action of the Board to cancel the examination was held to be bad.

Again in Sheodhari Prasad San v. State of Bihar, AIR 1960 Pat 196, the concept of giving average marks was resorted. The principle that no person can take advantage of his own wrong with a view to put the other person in a disadvantageous position was given effect to. The Patna High Court observed:-

In this case, there is no such provision. The question is what should be the course followed here. There are well-known legal maxims "Actus Curiae Neminem Gravabit", which means the act of court hurts no one and "Actus legis nemini est domnosus'''', which means an acting law shall prejudice no man. There is yet another legal maxim "No man can take advantage of his own wrong". This maxim in re London Celluloid Company, (1988) 39 Ch D 190 at p. 206 has been interpreted to mean "that a man cannot enforce against another a right .arising from his on breach of contract or breach of duty''''. The petitioner admittedly had a right recalculation of the marks obtained by him. A person can well invoke the jurisdiction of this Court to get his answer book revaluated provided he makes out a genuine grievance in that regard and adduces satisfactory material. I am of the view that the petitioner has made out such a case for revaluation of his answer book which the Respondents are unable to produce and even in invoking the 3rd legal maxim referred to in the said Chancery Division case. Thus, it was in the interest of justice for the Respondents to follow the same course as indicated by the Madhya Pradesh High Court or to take up a fresh examination in the subject if answer book of a candidate is lost. The petitioner cannot be allowed to suffer due to the mistake of the respondents in not preserving the copy of the General Knowledge. Accordingly, I direct the respondents either to grant average marks to the petitioner in the subject of General knowledge on the basis of marks already obtained by him in other subjects or to take up his fresh examination in the same subject within sixty days from today. If the Respondents, however, decided to take up a fresh examination, they must communicate to the petitioner within thirty days from today of their decision.

In the present case, it is clear that the question answer book-let was defective. The petitioner has stated that she lost 25 to 30 minutes. She wanted more time. The fact that a complaint was made in the middle of the examination has not been denied. In the above cases, where there was loss of answer books method of granting average marks was resorted. Here there is loss of time. The petitioner has done well in this paper. Had there been no fault in the stitching the problem would not have arisen. The respondents now must compensate the petitioner. This can be done by giving her average marks for un-attempted questions. For 87 questions she obtained 22ft marks. Let the average of 13 be counted and added to her count.

This petition is accordingly, allowed in the manner indicated above. Let the result be declared now after re-evaluation within this week.